Marriage: Breeders' Cup?

Question of the Day: Elena Kagan

03.26.13 6:52 PM ET

On this matter of marriage existing for the purpose of procreation, Elena Kagan delivered the question of the day. Counsel Charles Cooper was going on about this link when Kagan asked him if it would be constitutional for a state to deny straight couple 55 and older the right to marry.

Cooper responded that even in that case, at least one member of the marriage would likely still be fertile, a suggestion that drew laughter from the courtroom.

I should say. The whole argument is preposterous. This is a country where nearly half of all children are born out of wedlock. Believe it or not, while I'm hardly in the same school on this as Rick Santorum or my fellow Morgantown native Robbie George, I actually don't think this is a great thing. But it exists. And pretty soon it's going to be above 50 percent, and someday it's going to be above 60 percent. Can anyone in such a society plausibly make an argument that marriage is the great vehicle for procreation?

How would this change society anyway? The numbers below the numbers show that a lot of people are cohabiting, just not marrying. I suppose this makes the chance of children being raised by single parents more likely, although with today's divorce rate of 50 percent, even that seems a stretch. I think much of the change of the sort Santorum and George don't like has already happened, and most Americans accept it, and I don't see where we're any less moral a country.

What makes us an immoral country, to the extent that we are, is that many billions of dollars pollute and corrupt our political process ensuring that the deck is permanently stacked in favor of those at the top: the top 2 percent when the Republicans are in power, and about the top 15 percent when the Democrats are.